People v. Harriot

3 Park. Cr. 112 | Court Of Oyer And Terminer New York | 1856

Shankland, P. J.

The statute commands the supervisors to select the names of three hundred men, possessed of certain qualifications, to serve as grand jurors for the ensuing year. In this case, it seems that but two bundled and ninety-nine were thus selected, and the present indictment was found by a grand jury drawn from the two hundred and ninety-nine names. We are of opinion that the omission lies too far back to vitiate the indictment. The chances of such omission harming the prisoner are too remote to possess practical value. It depends on the following contingencies: First. That the person whose name is omitted would be alive at the time of the drawing of the grand jury and still in the county; Second. That his name would be drawn on this particular jury; that he would be summoned by the officer and should attend the court; Third. That he should be opposed to the finding of the indictment, and that his opposition would reduce the number of jurors in favor of finding a true bill to less than twelve. These contingencies reduce the chances of harm to a practical nonentity, and justly subject the alleged error to the operation of the maxim, “ The law careth not for small things.”

Such, also, would seem to have been the views of the legislature, for they have made no provision for challenges for this cause or any other cause so far back in the process of procuring a grand jury; but they seem to have confined the defendant’s challenges to the particular grand jury by whom he may be indicted, and his challenges then are specifically pointed out and all others are peremptorily prohibited.

It would seem that the omission which is complained of can have no more force than if three hundred had been duly selected by the supervisors, and it had happened that one thus selected had died, or removed, or was too old to serve; and yet, in such a case, I doubt whether any lawyer would seriously raise the objection. The three hundred selected by the board are always subject to be reduced in numbers by death, removal and other causes, and yet no provision is made for keeping up that number, unless the number be reduced to less than fifty. In short, it is not until the names are drawn from the box for the formation of the grand inquest that the defendant becomes interested in the procedure, and at that point commences the. right to challenge.

We are therefore of opinion that the objection against this indictment ought not to prevail.

Motion denied.